Ted Cruz revisits John Yoo

Waterboarding isn’t torture, Ted Cruz assures us, because the “generally recognized definition” of torture is “excruciating pain that is equivalent to losing organs and systems.” And when it comes to a president’s power to approve interrogation methods for suspected terrorists, Cruz said during a Feb. 6 Republican presidential debate, “the commander-in-chief has inherent constitutional authority to keep this country safe.”

If that sounds familiar, it should.

In August 2002, Justice Department attorney John Yoo, a former UC Berkeley law professor, advised President George W. Bush that waterboarding did not meet the legal definition of torture, which he described as the deliberate infliction of the level of pain suffered during “organ failure, impairment of bodily function, or even death.” And although torture is forbidden by both U.S. law and an international treaty, Yoo said, a president has the inherent power to authorize it in wartime.

A public furor over the leaked Yoo memo led Bush to withdraw it in December 2004, although it took an executive order by the newly inaugurated President Obama in January 2009 to prohibit waterboarding by U.S. interrogators. Congress banned the practice by law last year, a law whose Senate supporters included Cruz — a fact not mentioned at the presidential debate.

Yoo, now back to teaching constitutional law at Berkeley, says the February debate showed Cruz, Donald Trump and other Republican front-runners share “the views that the Bush administration and I reached in the months after 9/11.”

Obama, Yoo said by e-mail, “disagreed with this interpretation and ordered all enhanced interrogation halted. We can all see how successful the Obama administration has been at bringing Islamist terrorist organizations to heel.”

Leaving aside, for now, the issue of how effective such “enhanced” methods as waterboarding, wall-slamming, prolonged stress positions and mock executions were at preventing terrorism — not at all, according to a Senate Intelligence Committee report in 2014 — Yoo‘s assessment that Cruz shares his view of the law of interrogation and presidential powers is hard to dispute.

And Cruz has a heftier legal resumé than any other candidate in either party. A Harvard Law School graduate, he served as a law clerk to Chief Justice William Rehnquist, later became Texas’ solicitor general, and argued nine cases before the U.S. Supreme Court — credentials, he now says, that uniquely qualify him to choose a successor to the late Justice Antonin Scalia.

Familiarity with the high court, in Cruz’s case, may not have bred respect: He says he doesn’t consider the court’s June 2015 ruling on same-sex marriage to be the law of the land, and he wouldn’t follow it as president. He also wants the justices to face nationwide retention elections every eight years.

To Trump, apparently, legal constraints are largely irrelevant. His promise to bring back “waterboarding, and … a hell of a lot worse,” made no mention of the law as it’s been interpreted both at home and abroad — the criminal prohibition of torture by all civilized nations, the classification of waterboarding as torture by international tribunals, last year’s ban by Congress, and the past U.S. prosecutions of a Texas sheriff and a World War II Japanese officer for waterboarding Americans. He has since said he wouldn’t order the U.S. military to violate the law, while assuring the public that he’ll get the law changed to authorize “minimal torture” such as waterboarding.

And in a speech after last month’s debate, Trump derided Cruz for being weak and “politically correct” when the Texas senator disavowed the widespread use of waterboarding and said he would order it only to thwart imminent terrorist plots.

As for the Democrats, while Obama, Hillary Clinton and Bernie Sanders unite in condemning waterboarding and torture, none of them has proposed prosecuting or otherwise sanctioning anyone who engaged in abusive interrogation, or the higher-ups who authorized it.

Obama describes his approach as looking forward, not backward. As a prescription for the future, it might also be viewed as a free pass.